Will The Real Elena Kagan Stand Up?

Don’t believe a word you read that President Obama’s Supreme Court nominee Elena Kagan is conservative, centralist or progressive. The fact is Kagan, 50, the first woman Solicitor General, essentially offers a blank legal slate.

As Dean of Harvard Law School, Kagan filed an amicus brief claiming the military’s “Don’t Ask, Don’t Tell” ban on gays a “moral injustice of the first order.” The case was thrown out.

But during Kagan’s confirmation hearing before the Senate as Solicitor General, Kagan said she thought the government would be on solid legal ground in defending the policy.

Kagan is applauded by friends and foes as a “brilliant legal scholar” but none can point to a single issue where she stands. One close associate said she’s probably a centralist but that was only a “gut feeling.”

The native New Yorker has argued six cases before the Supreme Court as Solicitor General. The only one in which a decision was rendered — the Citizens United case in which the court ruled 5-4 that corporations have the same rights as individuals to finance election campaigns — she lost.

Kagan, affectionately called “Shorty” by Justice Thurgood Marshall whom she clerked for in 1987-1988, took on equally combative Justice Antonin Scalia in the Citizens United arguments over the government’s role of regulating free speech.

Scalia: “We are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.”

Kagan: “I think, Justice Scalia, it’s wrong. In fact, corporate and union money go overwhelmingly to incumbents. This may be the single most self-denying thing that Congress has ever done.”

During the arguments, Chief Justice John Roberts scolded Kagan for asking questions to the justices. She apologized.

When grilled at her earlier confirmation hearing by the Senate in March 2009, Kagan said she did not believe same-sex marriage was a constitutional right, she was not opposed to capital punishment and agreed with Republicans that the U.S. was at war with Islamic jihadists.

If progressives didn’t squirm over those positions, they certainly didn’t enjoy her contention that detainees being held in Afghanistan did not have the right to due process even though the high court has upheld those rights for prisoners at Guantanamo Bay.

She also said there was “no reason” to fault the court’s 5-4 ruling that the Second Amendment provided the right for private gun ownership but she would uphold the Bush administration’s practice of defending federal restrictions on some firearms.

Her detractors claim Kagan is so politically cautious she has delayed submitting briefs on controversial issues before the Supreme Court knowing she was a prime candidate for Justice John Paul Stevens who is retiring at the end of this year’s session.

How cautious is she? Paul Campos in his opinion piece for CBS News writes:

Indeed, Tom Goldstein, a Washington lawyer and publisher of SCOTUSblog, describes Kagan as “extraordinarily-almost artistically-careful. I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Campos points out Kagan has written three scholarly articles, two shorter essays, two brief book reviews and two other minor pieces. Compare that to other candidates on Obama’s “short list” of nominees:

Pamela Karlan and Harold Koh each have written more than 100 articles and Cass Sunstein several hundreds in addition to 20 books on the law.

And one of Kagan’s papers, Campos notes, was the 2001 article “Presidential Administration” published in the Harvard Law Review, describing how presidential oversight of federal administrative agency decision-making increased significantly during both the Reagan and Clinton administrations.

“Yet the article is focused almost solely on outlines of the administrative process, rather than its substance, thus sidestepping almost all potential political controversy,” he says.

Concludes Campos:

And yet, despite her largely blank record of opinion, Kagan’s candidacy for the high court has provoked almost ecstatic enthusiasm from various current and former colleagues on both sides of the political aisle. She has been praised for her “brilliance,” for her “many remarkable qualities” and for being “scrupulously fair-minded” to people of various political views.

The snotty conservative right-wing blogger Michelle Malkin dashed to her computer upon learning of the nomination prospects Sunday night and sent this missive, a repeat of an item she wrote about Kagan when her name was considered for Obama’s first court appointment in which he nominated Sonia Sotomayor:

“Dean Kagan’s nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation’s high court.

-It is also unclear that a Justice Kagan would be an adequately independent check on executive excesses. She has argued in favor of greatly enhanced presidential control over the bureaucracy, which is concerning in light of President Obama’s unprecedented centralization of power in the White House.
-Dean Kagan has argued that nominees to the Supreme Court should undergo a searching inquiry into the nominee’s substantive views of the law, and should comment particular issues. If nominated, it will be interesting to see whether Dean Kagan remains faithful to this prescription in answering the Committee’s questions.”

Ah, Goldman Sachs, Congress’s latest pariah on Wall Street. Kagan served on its research advisory board from 2005-2008 which, among other things, failed to notice the bubble about to explode in the housing market collapse.

Other skeptics could find little of substance between 1988-89, her only stint in private practice as an associate at Williams & Connolly in Washington, D.C.

As SCOTUSreport concludes:

Kagan has been nominated with no judicial experience, a mere two years of private law practice, and only a year as Solicitor General of the United States. She is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory.

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EPILOGUE

Elena Kagan has a lot of ‘splaining ahead in her confirmation hearings. The blogs are already nasty, floating the rumor she is a lesbian. To that, I say, so what? We always strive for diversity on the nation’s highest court.

Jerry Remmers worked 26 years in the newspaper business. His last 23 years was with the Evening Tribune in San Diego where assignments included reporter, assistant city editor, county and politics editor.